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Christopher Simmons v. Jonathan Akanno

April 22, 2011





Plaintiff Christopher Simmons ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his Complaint on April 14, 2009 and consented to Magistrate Judge jurisdiction on June 8, 2009. (ECF Nos. 1 & 8.) Plaintiff then filed a First Amended Complaint on April 8, 2010. (ECF No. 10.) No other parties have appeared in this action.

Plaintiff's First Amended Complaint was dismissed with leave to amend for failure to state a claim on December 8, 2010. (ECF No. 20.) Plaintiff filed his Second Amended Complaint which was also dismissed for failure to state a claim on February 18, 2011. (ECF Nos. 23 & 24.) Plaintiff filed his Third Amended Complaint on March 28, 2011. (ECF No. 28.) The Court has not yet screened Plaintiff's most recent amended complaint.

Pending before the Court is Plaintiff's "Objections and Motion/Request for Leave to Appeal Orders of December 8, 2010 and February 18, 2011". (ECF No. 25.) This Court construes and analyzes Plaintiff's motion/request for leave as a request for certification of an interlocutory appeal.


Plaintiff objects to the Court's Screening Orders filed December 8, 2010 and February 18, 2011 and asks for leave to appeal those orders. Plaintiff states that he disagrees with the Court's finding that he can not bring his claim under the American's with Disabilities Act and his claim for inadequate medical care in the same action. He also states that his complaints must be liberally construed.

As to his request for leave to seek appellate review, Plaintiff states that: "1) The Court's Order(s) a) conclusively determines Plaintiff's right to bring multiple claims in a single action; b) review is necessary to resolve an important issue separate from the merits of the action; and c) the Court's Order indicated that failure to comply with, in all due respect, the pleading standard under Federal Rule of Civil Procedure 8(a) will result in dismissal with prejudice, and that all causes of action not alleged in the Amended Complaint is 'waived,' and would not be reviewable, depriving Plaintiff of his substantive right to relief." (ECF No. 24, p. 2.)

IV. Legal Standard and Analysis

When an issue is unresolved and interlocutory resolution could materially advance the termination of the litigation, 28 U.S.C. § 1292(b) permits a question to be certified for appeal, when a district court certifies that an order not otherwise appealable under section 1292(b) "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." U.S. v. W.R. Grace, 526 F.3d 499, 522 (9th Cir. 2008); 28 U.S.C. § 1292(b). "Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review." Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, n.10 (1996). Thus, section 1292(b) requires a two step application process.

Step one is at the district court level for certification of the order -- which is discretionary. S. Repr. 2434, 85th Cong., 2d Sess., 1958, in 1958 U.S. Code Cong. & Admin. News 5255, 5257. Indeed, permissive interlocutory appeal is not available absent written certification from the district court. Credit Suisse v. U.S. District Ct., 130 F.3d 1342, 1346 (9th Cir. 1997). A district court may amend its order to add findings for an interlocutory appeal. Rule 5 of the Federal Rules of Appellate Procedure governs appeals by permission under section 1292(b):

(a) Petition for Permission to Appeal . . .

(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement.

If a district court certifies an order for interlocutory appeal because it involves a controlling question of law, after the order is initially entered, the proper procedure is to amend the order to contain the required certification. Haas v. Pittsburgh Nat. Bank, 627 F.2d 677, 679 n.1 (3d Cir. 1980). A certification order that is not directly framed as an amendment of the original order may nonetheless be treated as an amendment. Id. Though not stated as such, the practical application of the permission for leave to appeal sought by ...

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